Is 'Wrongful Birth' Malpractice?

Eight-year-old Jade Fields has just come home from a school for disabled children. Her parents, Willy and Cynthia, are there to meet her.

Jade is severely retarded, can't walk, and can only say a few words. She's also legally blind, fed through a tube in her stomach and often has to be hospitalized.

The Fields take care of her with help from Sharday, their 17-year-old son.

"I really did not know how much work it really was, you know. It's so much work," says mother Cynthia Fields.

But nine years ago, when Cynthia first saw Jade on a sonogram, it was one of the happiest days of her life.

"I was just so overwhelmed with joy. I'm going to have a little girl, a little girl my husband always wanted, and, oh, it just brings chills to me," says Cynthia.

Willy Fields, a sanitation worker, rushes home to spend time with Jade every day after work.

"I can't wait to get home to see her, to see her smiling and I know she's not the healthiest girl in the world, but, you know, what she feels I feel, 'cause she's my heart," says Willy. "That's all I can say; she's my heart."

But in 1999, the Fields filed a "wrongful birth" lawsuit against their obstetrician, claiming he should have detected Jade's condition and told them about it. Correspondent Ed Bradley contentious issue of "wrongful-birth" lawsuits.

"Jade is the best thing that could have ever happened to us, I mean she's our foundation, she's our rock. But if we had known, I didn't have an option," says Cynthia, who would have had an abortion if she knew about Jade's condition.

"When looking at this child, first question is, why wasn't anything picked up on the sonogram," says Rachelle Harz, the malpractice lawyer who took the Fields' case. Harz won nearly $1.7 million dollars for the Fields when they settled their wrongful birth case out of court.

Since the doctor hadn't saved any of his sonogram pictures, the main piece of evidence in their wrongful birth suit was the hospital discharge record, which described Jade's health at the time she was born.

"And on physical examination it specifically says "neck folds" and it says an ultrasound showed a "right choroid plexus cyst," says Harz, who believes that both of these conditions should have been seen on a second trimester sonogram.

"Those two things in and of themselves would have required further investigation into the condition of this fetus, and nothing was done," says Harz.

In his defense, the doctor said that to clarify the health of the fetus, he offered Cynthia Fields an amniocentesis, an offer she says he never made. The doctor declined 60 Minutes' request for an interview, but told a reporter for a local paper that he didn't cause Jade's retardation -- God did.

"He didn't cause the child's retardation, what he caused was not giving the proper information to the parents to allow them the choice to abort the child," argues Harz. "He caused the birth of this very, very neurologically impaired child. He did not cause the child to have that injury."

In 1973 the Supreme Court upheld a woman's legal right to an abortion, and that opened the door to the first successful wrongful birth lawsuit a few years later.

But wrongful birth suits are not accepted everywhere. Right now, only twenty eight states recognize them, and nine states prohibit them outright. And most of these cases are settled out of court.

"When your client is offered a certain amount of money that's going to change their life, what more is it that you think you can do for your client," says Harz.

Wrongful birth suits often settle out of court for less money than a jury might award because insurance companies don't want a child like Jade brought before a jury. Plus, sonograms don't always make the most convincing evidence at trial.

Even the best obstetricians can have a difficult time reading them. Dr. Jim Shwayder is the Director of Ultrasound Medicine at the Denver Health Medical Center.

Dr. Shwayder showed 60 Minutes a tape of an ultrasound where he thought he had seen an abnormality like the one Jade Fields had. He believed this child might also be born retarded.

"We actually labeled this as a possible abnormality. Well, this is in fact a baby that has a great deal of hair, and when it was delivered the baby was perfectly normal," says Shwayder. "What we were witnessing here was really hair that was free-floating in the fluid, creating what appeared to be a possible abnormality."

Dr. Shwayder has testified as an expert witness in many wrongful birth cases for both doctors and patients, so 60 Minutes asked him to examine the evidence in Jade Fields case.

"One of the things that's discussed here for instance is a slightly thickened neck fold. That's become a marker for Downs Syndrome," says Shwayder. "But we also know that only represents about 45 percent sensitivity in detecting a Downs Syndrome baby. That means that over half those babies that have a thickened neck fold so not have Downs Syndrome."

According to Shwayder, the evidence indicates that there needs to a be heightened awareness to her case, but the document is not proof of malpractice.

Are these suits driving good doctors out of the profession?

"I think they are. I think what's happened is physicians now are held to a level that perhaps many people could not see in their own life, they're basically held to perfection," says Shwayder.

And that standard, according to the American College of Obstetricians and Gynecologists, is a major problem for doctors. They currently list twelve states where malpractice suits have caused insurance premiums to increase so much that they threaten to drive obstetricians out of business.

One of those states is New Jersey where, last June, over a thousand doctors and their supporters rallied at the state house, calling for tort reform and a cap on malpractice lawsuits.

Does Harz, as a malpractice lawyer, feel any responsibility for driving good doctors out of business?

"If you want to get rid of malpractice premiums, wouldn't it be better to get rid of the malpractice," says Harz.

"If there wasn't to be a medical malpractice case, where's this victim supposed to turn? Who's going to be policing the doctors then?"

It's estimated that thousands of wrongful birth lawsuits have been filed since 1973, and there are no restrictions on the birth defect for which parents can sue.

The disabled child that parents claim would have been "better off dead" might be severely retarded, like Jade Fields, or might be like 9-year-old Ryan Powers, who is also one of Harz's clients. After his parents won an out of court settlement, his story was profiled in "The Record," a New Jersey newspaper.

Ryan was born with spina bifida, and is paralyzed from the waist down. But mentally, he's normal. He's mainstreamed in a Catholic school, and on his last report card, his mother Karen told us he got straight A's. She didn't want to talk on camera about the wrongful birth lawsuit she brought against her doctor, saying she wanted "to put all that behind us."

But in these cases, you have to ask yourself, is this the kind of child that would have been better off not being here?

"Are you saying that someone should come up with a criteria as to what injuries are okay and what injuries aren't okay to be determined prenatally for abortion," asks Harz. "Who are we to make these judgments?"

"It seems as though we're questioning not only the value of life, but the value of people who are not perfect," says Anita Allen-Castellito, a law professor at the University of Pennsylvania and a bio-ethicist.

Castellito worries that Ryan will be damaged emotionally if he learns that his mother testified that she would have had an abortion if she had known about his condition.

"Realistically how many children are going to hear that complicated story as opposed to the simpler message that 'I didn't want you, you're disabled, I didn't want a disabled child,'" says Castellito.

"I know that it's not true that spina bifida causes people to have miserable lives," says Marsha Saxton, who was born with spina bifida and now works with disabled children as a researcher at the World Institute on Disability.

"Wrongful birth suits give children and adults with disabilities the message that our very existence was a tragic mistake," says Saxton at a disability conference.

"The message is that these children's' lives are so miserable and such a burden to the family that the only compensation would be millions of dollars. And this is such a distortion, of what these children's' lives are like."

In fact, Saxton says that children with spina bifida, or with Downs Syndrome, two of the more common causes of wrongful birth suits, can and do live perfectly happy lives. But she understands why parents would bring a wrongful birth lawsuit.

"It's a vulnerable time for parents, and they're trying to figure out how best to care for this child with different kinds of needs than they had anticipated, and somebody comes along, maybe it's somebody from the medical system or a relative, or a neighbor who says 'You could make some money here,'" says Saxton.

And money can solve a lot of problems for the family of a disabled child. With their portion of the settlement money, around $1.2 million dollars, the Fields family bought a van with a wheelchair lift and plan to finally get some outside help to take care of Jade.

"With this settlement or whatever, we'll see what it feels like to have nursing," says Jade's mother, Cynthia.

"When you can recover for a family such as this so that the parents know that when I can't take care of him anymore, he'll be able to take care of himself, do you know what I have done for those parents," asks Harz. "They know when they go to sleep, someone will take care of their child."